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Home / News and Insights / Blogs / Planning Act 2008 / 968: Generation hokey-cokey and a curious s35 direction

This week’s entry considers the state of play with electricity generation and a section 35 direction.

Electricity generation

The Johnson premiership was very hot on net zero and issued a number of documents supporting this (although ironically its net zero strategy was found to be unlawfully uncertain – see more below about that).

Offshore wind was in (to the point of having its own faster track consenting process proposed), as was solar (with a target of 70GW up from the current 14GW), but onshore wind was out. The moratorium on fracking was being reconsidered.

The Truss premiership has changed a lot in a short space of time but it is not clear how much will stick – nothing has actually changed yet.

Offshore wind remains in, although the fast-track consenting process is being put in a different bill and will apply to all DCO projects.

Onshore wind is back on, according to the Growth Plan issued in September. Fracking is the strangest one, as everyone is terribly keen on it again but only if local communities want it, which means it probably won’t actually happen as that is what is currently imposed on onshore wind to prevent it.

Solar is now less popular and there are suggestions that ‘best and most versatile’ agricultural land, on which solar farms are discouraged, should be extended to include ‘moderate’ grade land with classification 3b. Moderate is best? Ironically moderate grade land is less suitable for crops and is more often used for grazing, which is compatible with solar farms.

This has caused a lot of concern as it makes solar almost impossible on farmland of any grade because the lower grades 4 and 5 tend to be hilly and not good for solar or agriculture. Somewhat surprisingly there are now reports that the Prime Minister and Jacob Rees-Mogg are at odds over this.

The rationale for all this is not just net zero but also energy independence (ie not relying on imported fuels or anything generation-related), which are surely laudable if not essential aims. But should these two international-level considerations be outweighed by visual impact (which is behind most of the opposition?) Yes, actually, on occasion, if the impact is very great while many other options exist. But a minor visual impact is surely worth tolerating.

Section 35 direction

On 4 October the Secretary of State decided that the transmission infrastructure for two separate offshore windfarms should be ‘together and individually’ considered a project requiring a DCO. (Nearly said ‘NSIP’ there but for the moment the High Court has decided that a s35 direction does not an NSIP make).

The relevant correspondence can be found on the BEIS website, here.

It is clearly a good idea to combine transmission assets to reduce the impact on the sea bed and the landward sections. The supporting statement cites the Dogger Bank Creyke Beck DCO as precedent for two ‘electrically separate’ sets of works being authorised in one DCO. Of course there’s nothing wrong with having more than one NSIP in a DCO, which has been done a few times, not that these are NSIPs.

It is also the case that the recent scoping opinions obtained for the two projects only cover the windfarms and not the transmission infrastructure, whereas the third Irish Sea ‘M’ windfarm, the Mona one, does.

Another s35 direction brings the carbon capture and hydrogen infrastructure at Cory’s Riverside site within the Planning Act 2008 regime. 90% of the carbon produced by the Riverside 1 station and the Riverside 2 station, not yet built but consented by DCO in 2020, is to be captured.

Jacob Rees-Mogg’s first DCO decision was to have been on 7 October, for the Boston Alternative Energy Project application, but has been delayed until 10 January 2023 ‘to ensure there is sufficient time to allow for further consultation on the proposal’. The next one he might make is for the Keadby 3 power station near Scunthorpe, due by 7 December.

Finally, the Good Law Project is reporting that the government is not going to appeal the High Court decision that the Net Zero Strategy was unlawful, so must supply the missing information by 31 March 2023.

Please keep an eye on our Planning Act 2008 blog page to hear more commentary on the latest in this area.

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